Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Super. Ct. No. SCN208594
O'ROURKE, J.
Following a court trial, Francisco Ernesto Villegas was convicted of committing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1); count 1) and oral copulation by a person over the age of 21 on a person under the age of 16 (§ 288a, subd. (b)(2); count 2). The court found true allegations that in the commission of the count 1 offense, Villegas inflicted great bodily injury under sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). The court sentenced Villegas to two years in prison on count 1 and two years in prison on count 2 to run concurrent to count 1, with an additional three years for the great bodily injury enhancement. Villegas contends we should strike the enhancement because impregnation resulting from non-forcible sexual intercourse does not constitute great bodily injury. He further asks us to recalculate his presentence custody credits because absent the great bodily injury enhancement, he is entitled to an additional 75 days of credit. Rejecting Villegas' s contention that pregnancy is not great bodily injury within the meaning of section 12022.7 as applied to this case, we affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the pertinent facts from the preliminary hearing transcript, which provided the stipulated basis for the trial court's decision. Melissa C. met Villegas, a coworker of her stepfather, when she was 13 years old. Villegas spent time with Melissa and her family, and he and Melissa became friends. Melissa told her mother she liked Villegas and they appeared to Melissa's mother as if they had a dating relationship. Eventually, when Melissa was 14 years old, she and Villegas began a sexual relationship that resulted in Melissa's pregnancy. On learning Melissa was pregnant, Melissa's father called police.
Sheriffs deputies interviewed Melissa and her parents in March 2006. Initially, Melissa denied having a sexual relationship with Villegas, but in a later interview, she admitted having intercourse with him once or twice a week for a period of time. Sheriffs deputies arrested Villegas in May 2006. At the time, Villegas acknowledged being the father of Melissa's baby, but stated he had no real sexual relationship with her, only a friendship or mentor-type relationship.
At trial, the prosecution's theory supporting the section 12022.7 enhancement was that Melissa's impregnation and the fact she, a 14-year-old girl, carried the baby for 38 weeks, constituted great bodily injury. The court found the great bodily injury enhancement allegation true beyond a reasonable doubt: "When you're talking about a 14-year-old child, who probably just started to menstruate within a year or so before then, to have to go through the difficulties of pregnancy would most certainly be great bodily injury within the meaning of section 12022.7 and 1192.7 [subdivision] (c)(8)."
DISCUSSION
Villegas contends that pregnancy caused by non-forcible sexual intercourse cannot constitute great bodily injury for purposes of the section 12022.7 enhancement, which defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) Relying upon People v. Escobar (1992) 3 Cal.4th 740, People v. Cortes (1999) 71 Cal.App.4th 62 and People v. Duval (1988) 198 Cal.App.3d 1121, and distinguishing People v. Sargent (1978) 86 Cal.App.3d 148 and People v. Cross (2005) 134 Cal.App.4th 500, he maintains sexual intercourse by itself cannot establish conditions likely to cause great bodily harm, and thus his act against Melissa did not have the requisite brutality or violence necessary for such a finding. He argues that the gravamen of a great bodily injury enhancement is that the underlying offense involved the use of force or violence, neither of which are present in this case. Villegas further contends that imposing great bodily injury enhancements for impregnation or childbirth is inconsistent with the underlying purpose of the enhancement, which is to deter the excessive use of force and infliction of harm beyond that inherent in the crime.
The issues of whether (1) a legal, surgical abortion and (2) pregnancy itself support a section 12022.7 enhancement are currently before the California Supreme Court in People v. Cross, supra, S139791, review granted March 1, 2006.
We agree with the analyses of those courts, including Sargent, supra, 86 Cal.App.3d 148,concluding that pregnancy falls within the definition of significant and substantial physical injury in section 12022.7, subdivision (f). Section 12022.7 provides in part: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. . . . [¶] . . . [¶] As used in this section, 'great bodily injury' means a significant or substantial bodily injury." (§ 12022.7, subds. (a), (f).) Imposition of a great bodily injury enhancement requires the existence of substantial injury beyond that inherent in the underlying offense itself. (People v. Escobar, supra, 3 Cal.4th at pp. 746-747.) In Escobar, the court emphasized that a " 'significant or substantial physical injury' " does not define a particular standard for severity or duration: "[T]he standard employed in section 12022.7 and, accordingly, section 12022.8, 'contains no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (People v. Escobar, supra, 3 Cal.4th at p. 750.)
In People v. Sargent, supra, 86 Cal.App.3d 148, the court, applying People v. Caudillo (1978) 21 Cal.3d 562, held that a victim of forcible rape who became pregnant as a result of that rape suffers great bodily injury within the meaning of the statute. While the Sargent court concluded the jury was erroneously instructed that the forcible rape itself constituted great bodily injury, it declined to strike the great bodily injury enhancement, holding the jury could find the allegation true based on the fact of the victim's pregnancy and resulting abortion. It reasoned: "A pregnancy resulting from a rape (and, in this case, a resulting abortion) are not injuries necessarily incidental to an act of rape. The bodily injury involved in a pregnancy (and, in this case, a resulting abortion) are significant and substantial. Pregnancy cannot be termed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or damage. It involves more than the psychological and emotional distress necessarily incident to a rape which psychological or emotional distress the authors of [Caudillo, supra, 21 Cal.3d 562] deemed not to constitute significant or substantial physical injury. Major physical changes begin to take place at the time of pregnancy. It involves a significant bodily impairment primarily affecting a woman's health and well being. It is all the more devastating when imposed on a woman by forcible rape. [¶] Pregnancy can have one of three results childbirth, abortion or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a woman's body. A miscarriage speaks for itself. Just what the dimensions of a 'normal' rape might be, we leave to the authors of Caudillo. We merely find that the facts in this case, i.e., a pregnancy followed by an abortion, clearly support a finding of great bodily injury. In other words, there is evidence of injury significantly and substantially beyond that necessarily present in the commission of rape." (People v. Sargent, 86 Cal.App.3d at pp. 151-152.)
People v. Caudillo was overruled in People v. Escobar, supra, 3 Cal.4th at pages 747-750. Caudillo had reasoned that "transitory and short-lived manifestations of physical or bodily effects" suffered by the victim that did not result in any "serious impairment of physical condition or any protracted impairment of function of any potion of her body" was not encompassed within the meaning of great bodily injury under section 12022.7. (People v. Caudillo, supra, 21 Cal.3d at pp. 588-589.)
We agree with Sargent that pregnancy, with all of its attendant consequences including childbirth, is a serious physical condition amounting to a significant and substantial injury separate from the act of intercourse, and constitutes great bodily injury within the meaning of section 12022.7. Villegas nevertheless argues Sargent has been misconstrued for the proposition that pregnancy constitutes great bodily injury. He asserts, "Sargent was a rape case, which necessarily involved a jury finding there was sufficient force to support the rape charge." He characterizes its holding as based on a "confluence of three prerequisites" consisting of the force involved in the rape, the pregnancy, and an abortion. Villegasmisreads Sargent. The Sargent court's discussion, set out above, plainly refers to the fact of the pregnancy as a significant physical injury in itself, with the abortion being one of several consequences. Indeed, Sargent appeared to implicitly reject the notion that to constitute great bodily injury, the pregnancy must result from a forcible rape when it stated that pregnancy "is all the more devastating when imposed on a woman by forcible rape." (Sargent, supra, 86 Cal.App.3d at p. 151, italics added.) We cannot interpret Sargent as requiring the presence of each of the factors as Villegas maintains. Nor do we agree with Villegas' s assertion that Sargent "focused on the effect of the amount of force used in a rape." To the contrary, Sargent's analysis hinged on the fact that the physical injury of pregnancy existed apart from, not incidental to, the act of rape to constitute great bodily injury. (Ibid.) Thus, the fact the intercourse in this case was non-consensual has no bearing on the question of whether Melissa's pregnancy itself constitutes great bodily injury sufficient for imposition of the enhancement.
Villegas also relies upon People v. Cortes, supra, 71 Cal.App.4th 62 and People v. Duval, supra, 198 Cal.App.3d 1121 for the proposition that "sexual intercourse cannot, by itself, establish conditions likely to cause 'great bodily harm,' " assertedly supporting his position that a certain level of brutality or violence is required to sustain a great bodily injury finding. We are unpersuaded. First, the premise of Villegas' s argument is incorrect since it is the result of the defendant's harmful act, not the act itself, that is the focus of a section 12022.7 enhancement. Second, Villegas' s reliance on Duval does not assist him. In Duval, a high school vice principal was charged with, among other crimes, statutory rape against a minor student who became pregnant and had an abortion. (Duval, 198 Cal.App.3d at pp. 1125-1126.) The defendant was charged with allegations that he intentionally inflicted great bodily injury under a former version of section 12022.7 requiring that the person subject to the enhancement have "the intent to inflict such injury . . . ." (Duval, 198 Cal.App.3d at p. 1131.) The court of appeal upheld dismissal of the section 12022.7 enhancement based on the lack of specific intent on the part of the defendant that the victim become pregnant. (Id. at pp. 1133-1134.) However, relying upon Sargent, supra, 86 Cal.App.3d at pages 151-152,it concluded pregnancy can constitute great bodily injury: "Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse." (Duval, 198 Cal.App.3d at pp. 1131-1132.) Thus, Duval favors our conclusion in this case that the section 12022.7 enhancement is supported by evidence of Melissa's pregnancy. In any event, Duval's discussion on the specific intent element of section 12022.7 no longer applies; subdivision (a) of that statute was amended in 1995 to eliminate that requirement. (Stats. 1995, ch. 341, § 1; People v. Carter (1998) 60 Cal.App.4th 752, 755.) The statute now only requires that the trier of fact find the defendant "personally inflict[ed]" the type of harm or injury sufficient to impose the enhancement. (§ 12022.7, subd. (a).) Villegas does not challenge the evidence of personal infliction, which is amply supported by the evidence.
We fail to see the relevance of Cortes, supra, 71 Cal.App.4th 62, which neither addresses the sufficiency of evidence to support a section 12022.7 enhancement, nor whether a father's sex act on his 13-year-old daughter meets its great bodily injury standard. Cortes addressed the section 273a, subdivision (a) offense requiring a finding of willful conduct committed under circumstances likely to produce great bodily harm or death. (Cortes, at p. 80.) It concluded that evidence that a father's acts of punching his 13-year-old daughter, pushing her to the ground, getting on top of her, hitting and beating her with wire supported his conviction under that statute. Cortes has no bearing on this case.
Finally, seeking to point out negative consequences of our holding, Villegas resorts to various levels of supposition, as he puts it, "carrying the concept to its illogical conclusions." We decline to engage in Villegas' s conjecture as to the consequences of our holding that pregnancy is sufficient evidence of great bodily injury. The determination of great bodily injury is essentially a question of fact, not of law. (People v. Escobar, supra, 3 Cal.4th at p. 750.) If there is sufficient evidence to sustain the trier of fact's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding. (Ibid.) The evidence that Melissa at the age of 14 became pregnant and underwent childbirth is sufficient to sustain the court's finding in this case.
Having upheld imposition of the section 12022.7 great bodily injury enhancement, we need not address Villegas' s request to recalculate his presentence custody credits, which is predicated on our striking the enhancement.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.